FEDERAL POLYTECHNIC BAUCHI v. MR. AYOADE FARAYOLA
(2014)LCN/7231(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 27th day of May, 2014
CA/J/292M/2013
RATIO
DISCRETION OF THE COURT REGARDING AN APPLICATION FOR AN EXTENSION OF TIME
In an application for extension of time within which to appeal, the discretionary power of the Court of Appeal is being invoked. The Court is usually as in this case, faced with two competing interests; the interest of the Respondent to enforce the judgment given in his favour and the interest of the Appellant not to be shut out of the appellate litigation which he is constitutionally entitled to. In the face of these directly competing interests, the Court must closely examine the affidavits. See DAHUWA V. ADENIRAN (1993) 2 NWLR (PT. 277) 580 AT 586. per CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A.
EFFECT OF DENIAL OF EXTENSION OF TIME ON APPEAL
It should be noted that the effect of denial of extension of time is a big punishment for an applicant and potential appellant as his appeal will not be heard on merit. It is as good as dismissal of an appeal. An appellate Court must therefore have compelling reasons to refuse to grant extension of time to applicants.
The Court may where necessary rebuke Counsel for unnecessary delay in bringing his application for extension of time, but where the Respondent is not prejudiced, the Court has always bent backwards to grant the application for extension of time in the interest of justice. per CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA E. NWOSU-IHEME Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
FEDERAL POLYTECHNIC BAUCHI – Appellant(s)
AND
MR. AYOADE FARAYOLA – Respondent(s)
CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A. (Delivering the Lead Ruling):
By this application the Applicant seeks:
“(1) An ORDER for extension of time within which to seek for leave of this Court to appeal against the judgment of the National Industrial Court Jos delivered on the 19th day of April, 2013 in Suit No NIC/ABJ/79/2011 between the Respondent and the Applicant.
(2) AN ORDER for leave of this Honourable Court to Appeal against the Judgment of the National Industrial Court Jos delivered on the 19th day of April, 2013 in Suit No NIC/ABJ/79/2011 between the Respondent and the Applicant.
(3) AN ORDER to appeal against the judgment of the National Industrial Court Jos delivered on the 19th day of April, 2013 in Suit No NIC/ABJ/79/2011 between the Respondent and the Applicant.
(4) AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”
The grounds of the application are as set out in the motion paper in support of which a six paragraph affidavit was filed.
The Respondent filed a 29 paragraph affidavit in opposition thereto.
I must observe that considerable portion of the affidavit and counter affidavit dwelt on legal argumentation which has no place in law in affidavit evidence.
It is also observed that Ground 5 of the Grounds for the reliefs sought and paragraph 3 (g) of the Applicant’s affidavit in support of the application contradict each other. While Ground 5 of the Grounds for the reliefs sought reads:
“That Counsel prepared a fresh one but could not file it as his wife fell Sick and he travelled with her to Egypt for medical treatment and inadvertently forgot to give directives to other counsel in Chambers.”
Paragraph 3 (g) reads:
“That the substantive counsel handling the matter, Nasiru Balan Malam Esq, prepared same but before he could file it, fell sick and flown to Egypt for immediate medical attention.”
There is also a further affidavit.
Be that as it may, Counsel for the parties presented their address and Response for and against the application.
Both Counsel formulated a sole issue for determination. Counsel for the Respondent Abejeme Esq. adopted the issue as formulated by Counsel for the Applicant Balan Malam Esq. it reads:
“Whether the Applicant’s prayers are grantable in law owing to the depositions in support of this application.”
For the Applicant, it was contended that for this Court to grant an application of this nature, there must be good and substantial reason. That the Applicant must also give cogent reasons why he is out of time. He referred to paragraph 3(d – h) and also paragraph 3(b – g) of the further affidavit. He also cited NIWA v. SHELL (2008) vol. 34 I NSCQR pg. 618 at 621.
The Respondent in opposing the application argued that the Applicant has not complied with Section 9 (2) of the National Industrial Court Act 2006, that there are no good and substantial reasons shown in the applicant’s affidavit to justify the grant of the applicant’s application as required by law. He cited C. C. B. N VS. OGWURU (1993) 3 SCNJ Pg. 54 at 55 among others.
In dealing with this application and its objection, I have gone through Order 7 of the Rules of this Court for Enlargement of time, Section 9 (2) of the National Industrial Court Act 2006 cited by the Respondent’s Counsel Section 243 (3) of the 1999 Constitution and other relevant authorities cited in support and in opposition.
In an application for extension of time within which to appeal, the discretionary power of the Court of Appeal is being invoked. The Court is usually as in this case, faced with two competing interests; the interest of the Respondent to enforce the judgment given in his favour and the interest of the Appellant not to be shut out of the appellate litigation which he is constitutionally entitled to. In the face of these directly competing interests, the Court must closely examine the affidavits. See DAHUWA V. ADENIRAN (1993) 2 NWLR (PT. 277) 580 AT 586.
The application for extension of time is not granted as a matter of routine but must be on very good grounds.
For application for extension of time to succeed, the applicant must file a supporting affidavit showing the following:
(a) That the delay in bringing the application is neither willful nor inordinate.
(b) That there are good and substantial reasons for failure to appeal within the prescribed period.
(c) And that there are good grounds which prima facie show good cause why the appeal should be heard.
See Order 7 Rule 10 (2) of the Rules of this Court 2011, see also the case of OKERE V. NLEM (1992) 4 NWLR (PT. 234) Page 132.
In the instant application as earlier pointed out though there were contradictions between the affidavit in support and the ground for the relief sought, coupled with the fact that the Respondent in his affidavit in opposition pointed to few reasons why this application should be refused and dismissed.
It should be noted that the effect of denial of extension of time is a big punishment for an applicant and potential appellant as his appeal will not be heard on merit. It is as good as dismissal of an appeal. An appellate Court must therefore have compelling reasons to refuse to grant extension of time to applicants.
The Court may where necessary rebuke Counsel for unnecessary delay in bringing his application for extension of time, but where the Respondent is not prejudiced, the Court has always bent backwards to grant the application for extension of time in the interest of justice.
In the light of what I have said above, the objection to the application for extension of time is not well grounded. It is inappropriate and unfounded. The objection is accordingly overruled. The application for extension of time is hereby granted.
ALI ABUBAKAR B. GUMEL, J.C.A.: I have had the privilege of reading in draft the leading ruling of His Lordship, Nwosu-Iheme, JCA. I full agree I have nothing more to add.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the privilege to read in a draft form the lead Ruling of my Lord, C. E. NWOSU-IHEME, JCA. I am in agreement with the reasoning and conclusion arrived thereat. The application has merit. I also would and do hereby grant same for being meritorious.
Appearances
N. B Malam with S. U. Sarki, H. Hame and A. G SalisuFor Appellant
AND
D. M AbejemeFor Respondent
